Who Will Stand Up for What Is Right?

The matters discussed in this post will seem utterly fantastical to some and overly technical, or even irrelevant and incomprehensible, to others. I place this warning at the outset to save either group from having to struggle through what follows. But if you are one of those who is increasingly concerned by the lack of accountability on the part of the leadership of The Episcopal Church, then by all means read on. If you agree with the conclusions I draw, I would ask that you forward a copy of (or a link to) this post to your diocesan Bishop. And if you are one of the very few in a position actually to do something, it is my prayer that you will take what I say here to heart.

The recent publication of a memorandum analyzing the serious violations of the Constitution and Canons of The Episcopal Church (and of the Diocese of San Joaquin!) by Presiding Bishop Katharine Jefferts Schori, and the report of a simultaneous sabotage of the site where it was originally published, following denouncements of its motives and demands by TEC loyalists for the name(s) of the memorandum's author(s), have significantly raised the procedural ante within The Episcopal Church.

On the one side we have the Presiding Bishop and her Chancellor, along with her Title IV Review Committee, who have charged the Rt. Rev. Robert Duncan of Pittsburgh with having "abandoned the Communion of this Church" in supposed violation of Canon IV.9. (For a full analysis of why such charges against a Bishop like +Duncan, who has no intention of leaving the Anglican Communion, constitute an abuse of this Canon, see my earlier posts here and here.) Despite the fact that the three senior bishops of the Church refused to agree to the inhibition of Bishop Duncan, the Presiding Bishop has continued to say that she intends to bring a resolution before the House of Bishops at its next meeting to vote on his deposition.

On the other side we have the canon lawyers, who (with the exception of the Presiding Bishop's Chancellor David Booth Beers and his firm) have been unanimous in their opinion that Canon IV.9 cannot be read to allow a vote to depose a Bishop who has not first been inhibited. This result follows from the plain language of the Canon itself:

If a Bishop abandons the communion of this Church . . . it shall be the duty of the Review Committee, by a majority vote of All the Members, to certify the fact to the Presiding Bishop . . . The Presiding Bishop, with the consent of the three seniorBishops having jurisdiction in this Church, shall then inhibit the said Bishop until such time as the House of Bishops shall investigate the matter and act thereon. . . .

Sec. 2. The Presiding Bishop, or the presiding officer, shall forthwith give notice to the Bishop of the certification and Inhibition. Unless the inhibited Bishop, within two months, makes declaration by a Verified written statement to the Presiding Bishop, that the facts alleged in the certificate are false . . . the Bishop will be liable to Deposition. If the Presiding Bishop is reasonably satisfied that the statement [is in good faith], . . . the Presiding Bishop, with the advice and consent of a majority of the three senior Bishops consenting to Inhibition, [shall] terminate the Inhibition. Otherwise, it shall be the duty of the Presiding Bishop to present the matter to the House of Bishops at the next regular or special meeting of the House. If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent, the Presiding Bishop shall depose the Bishop from the Ministry, and pronounce and record in the presence of two or more Bishops that the Bishop has been so deposed.

I have added the bolding in order to show the requirements of the Canon (i) that only a Bishop who has first been inhibited is "liable to Deposition"; (ii) that the inhibition is terminated if the inhibited Bishop makes a satisfactory statement of denial; and (iii) that otherwise, the Presiding Bishop brings the question of deposing the inhibited Bishop to the House for a vote. As the Memorandum referenced above argues, it makes nonsense of the Canon to argue that the sentence beginning "Otherwise . . ." applies to Bishops who have not been inhibited, because then the Canon would lack any provision for voting on a Bishop who has been inhibited.

I say "the canon lawyers have been unanimous" that Canon IV.9 must be so read, because every lawyer's opinion I have seen on the Web reads it that way, while I have yet to read a single legal opinion, signed or otherwise, either on the Web, or published elsewhere, that defends the Presiding Bishop's reading of the Canon (with the exception of her own recent letter to the House of Bishops, which was presumably written by, or with the help of, her Chancellor, but which she alone signed). There have been some differing opinions about the requirement in the Canon that a vote to depose be approved "by a majority of the whole number of the Bishops entitled to vote", but there has not been a single dissenting view expressed , with reasons and logic to back it up, that the Presiding Bishop is justified by the Canon in proceeding as she proposes to do.

The Presiding Bishop appears impervious to an argument based on the plain language of the Canon. As her letter to the House of Bishops indicates, her reading of it is entirely "concept-driven":

These [three senior] bishops who must consent to the temporary inhibition do not, however, have a veto over consideration of the merits of the deposition by the House of Bishops, any more than those who must consent to temporary inhibitions in other circumstances have a veto over consideration of the charges by a trial court.

In other words, the Presiding Bishop sees herself as both chief prosecutor and chief judge, and the refusal of the three senior bishops to go along with her program will not prevent its execution one whit: the language of the Canon to the contrary means not a thing in the face of what the Canon obviously intends conceptually.

This is truly a remarkable impasse. We have the Presiding Bishop of the Episcopal Church announcing for months that she intends to take a manifestly uncanonical act---and while many lay persons in the blogosphere are speaking out against its legality, the vast majority of the clergy in the Church is acting as though nothing is wrong. Indeed, the silence from the House of Bishops (with the exception of Bishop Duncan himself) is deafening. It will be the purpose of this post to show how the Canons themselves could be used (nay, perhaps are being used now, without our knowledge) to bring a halt to this unlawfulness. They can be used at once, if the courage exists to apply them. The mechanisms are in place. Will any of the Bishops use them? Will any of them have the simple Christian courage to stand up for what is right, and do it?

The first thing to note is that the Presiding Bishop must step aside in any case in which she is a Respondent, that is, in which she has to answer to someone else's charges. (Canon IV.3.49.) The same Canon provides that the presiding officer of the House of Bishops takes over her role in any such matter, and if the presiding officer cannot so serve, the Secretary of the House of Bishops shall assume the role. The presiding officer (Vice President) of the House of Bishops is the retired Rt. Rev. Richard S. O. Chang, until 2007 the diocesan of Hawaii, whose term runs until General Convention 2009; the Secretary is the Rt. Rev. Kenneth Price, Bishop Suffragan of Southern Ohio (toggle the link to page 2). In a case involving the Presiding Bishop, Bishop Chang would have to decide if he could act, and if not, the decisions would fall to Bishop Price.

Functioning in the role of the Presiding Bishop for such a case, either Bishop alone would have the power to act on the information at hand, without waiting for anything else to happen. Canon IV.3.23 (b) provides:

Whenever the Presiding Bishop has sufficient reason to believe that any Bishop has committed an Offense and the interests and good order and discipline of the Church require investigation by the Review Committee, the Presiding Bishop shall concisely and clearly inform the Review Committee in writing as to the nature and facts surrounding each alleged Offense but without judgment or comment upon the allegations, and the Review Committee shall proceed as if a Charge had been filed.

Thus whoever substituted for the Presiding Bishop in this case would have the power to proceed without waiting for charges to be filed, as provided in Canon IV.3.23(a), by the required three bishops, or by at least ten clergy and laity (of whom at least seven---one priest and six lay persons---would have to be from the Diocese of Nevada, where the Presiding Bishop is still canonically resident). Moreover, to stop the unlawful proceeding against Bishop Duncan in its tracks, Bishop Chang (or Bishop Price, if in his stead) could issue a temporary inhibition against the Presiding Bishop forbidding her to introduce the resolution, if they felt that she could not be stopped from proceeding otherwise. Canon IV.1.5(a) provides:

If a Bishop is charged with an Offense or Offenses or serious acts are complained of to the Presiding Bishop that would constitute the grounds for a Charge of an Offense and, in the opinion of the Presiding Bishop, the Charge or complaint of serious acts is supported by sufficient facts, the Presiding Bishop may issue a Temporary Inhibition. The consent of a majority of All the Members of the Standing Committee is required for Bishops with jurisdiction.

The last sentence does not have any application to a case involving the Presiding Bishop, who is not a bishop with jurisdiction over any Diocese with a Standing Committee. (The Presiding Bishop does have jurisdiction over the Convocation of Anglican Churches in Europe, but that is not a Diocese, and it has no Standing Committee.) Thus the temporary inhibition, which Canon IV.1.5(c) says may be issued "without prior notice" to the Bishop involved, and which Canon IV.1.7 says "shall be used sparingly and limited to preventing immediate and irreparable harm to individuals or to the good order of the Church," could in this instance be issued by the acting Presiding Bishop alone. Because the bringing of Bishop Duncan before the House without consent having first been obtained to his inhibition would be an extraordinary violation of the Canons on its own, there is a good argument to be made that the high standard of Canon IV.1.7 could be met in this case---especially since the Presiding Bishop appears to have lowered the bar for such inhibitions by her own temporary inhibition of the elderly Bishop MacBurney, retired diocesan of the Diocese of Quincy, in Illinois, whom she at first thoughtlessly prohibited from taking any clerical role at his own son's funeral.

If this scenario sounds beyond belief, it simply illustrates the degree to which the Presiding Bishop's conduct in this matter is unprecedented, and dangerous for the future polity of the Church. Extraordinary dangers call for extraordinary countermeasures. If Bishops can be deposed by a simple majority vote of those present, and without first being inhibited (as the Presiding Bishop claims was proper in the case of Bishop Cox), then no member of the House of Bishops can feel safe. Today it is the orthodox Anglican wing of the House who are on the block, but once a precedent has been set, it could be used against the liberal wing in the future. Once the rules have been chucked overboard, as Robespierre learned in the French Revolution, no safeguards remain to protect those who advocated their abandonment.

No doubt the matter would not have to go beyond a temporary inhibition, and the Presiding Bishop, caught perhaps by surprise, would come to realize the error of her ways. But if she protested the inhibition to the Title IV Review Committee, as allowed by Canon IV.1.5(d), all of the members of that Committee would have to recuse themselves under Canon IV.14.13, because of their participation in issuing the charges against Bishop Duncan, and also because Bishop Jefferts Schori's letter to the House of Bishops discloses that she has consulted the members of the Review Committee on the propriety of her actions, and they apparently confirmed her improper reading of the Canon. Thus they cannot be impartial, and would have to recuse themselves. Bishop Chang (or Bishop Price) would have to select five Bishops to serve as replacements on the Committee. Because of the role that she played in supporting the Presiding Bishop's uncanonical actions in San Joaquin, Bonnie Anderson of the House of Deputies would probably also have to recuse herself from participating, and her Vice President, the Rev. Brian Prior, of Spokane, would select two priests and two lay persons to make up the nine members of the Committee. It would take a two-thirds majority of the Committee, or six votes, to dissolve or modify the temporary inhibition (Canon IV.1.5 (d)).

Meanwhile, the same substitute Review Committee would have sixty days to meet and consider the charges against the Presiding Bishop under Canon IV.3.40. If it decided to go forward (that is, if the Presiding Bishop was still maintaining she was right), it would transmit its version of the charges to the Church Attorney under the Canons, who is Larry White, Esq. of Philadelphia. (However, since he is handling the proceedings against Bishop MacBurney on behalf of the Presiding Bishop, he might also have to recuse himself. It should also be noted that the Presiding Bishop's Chancellor is excluded from acting for the Review Committee by Canon IV.14.18.)

The Church Attorney in turn has 120 days in which to investigate and to report back to the Review Committee; then the Review Committee has a further 45 days in which to weigh his report and decide whether to go forward with a presentment (Canons IV.3.42 and IV.3.43). (In this work, the Review Committee would be assisted by up to three additional church attorneys whom it could appoint as Lay Assessors under Canon IV.3.35. A "Lay Assessor" is defined in Canon IV.15 as "a duly licensed attorney to advise in matters of law, procedure and evidence affecting a Court or Review Committee in its proceedings.") If it does vote to go forward, it is only then that the charges (in the form of a formal presentment) would be made public: up until that point, Canon IV.3.38 requires that all proceedings be kept confidential.

Thus Bishop Chang (or in his place, Bishop Price) could act in complete confidentiality throughout these entire proceedings I have described; if the Presiding Bishop backed down from her plans to have Bishop Duncan deposed, then the proceedings could be quietly dropped, and no one outside of those involved in the House of Bishops and on the Review Committee would ever know what had taken place. (By the same token, charges brought against the Presiding Bishop by three or more bishops, or by ten or more clergy and laity, could now be pending, and the public would not know of it unless and until a presentment was approved.)

I have saved the most fantastical point of all for the last. Under a little-known Canon, the Presiding Bishop herself could be the instrument of her own correction. Canon IV.3.23 (c) provides:

A Bishop who shall have reason to believe that there are in circulation rumors, reports, or allegations affecting such Bishop's personal or official character, may, acting in conformity with the written advice and consent of any two Bishops of this Church, demand in writing of the Presiding Bishop that investigation of said rumors, reports, and allegations be made. It shall be the duty of the Presiding Bishop to cause the matter to be investigated and report the results to the requesting Bishop.

Under this Canon, Presiding Bishop Jefferts Schori could in full confidentiality request two of her colleagues to join her in writing to Bishop Chang (or to Bishop Price, if Bishop Chang recused himself) and in asking that the propriety of bringing the resolution to depose Bishop Duncan be formally investigated. The Canon does not say, but presumably the investigation could be carried out by the replacement Review Committee and by the replacement Church Attorney, as just described. This process would ensure the professional and outside opinions of at least four knowledgeable church attorneys on the proper interpretation of Canon IV.9, would be entirely confidential, and if the attorneys involved are selected impartially for their knowledge and skill in church law, I am confident in predicting that the Presiding Bishop's mistaken reading of the Canon would be refuted. And all this could happen with no loss of face, and no damage to the Presiding Bishop's prestige, since the whole affair would be kept confidential. [Update - 05/28/2008: For an example of another Bishop who recently availed himself of the procedure under Canon IV.3.23 (c), see this post.]

Of course, the Presiding Bishop is undoubtedly free to obtain a second (or a third, or a fourth) opinion on her reading from outside counsel at any time herself. She apparently believes she has done so, at least in the cases of "an attorney who is an original member of the [Title IV Review] Committee, the chancellors of several dioceses who have been consulted, and the former Chair of both the Standing Commission on the Constitution and Canons and the Legislative Committee on the Canons at the General Convention." She has not, however, produced a signed legal opinion from any of these persons she describes as having consulted. The process I am pointing out in this post would, unlike the apparently informal and verbal opinions which she solicited from acquaintances and colleagues, result in full and formal written legal opinions authored by independently hired church attorneys, who would not be beholden to Presiding Bishop Jefferts Schori for either their compensation or their thinking. If, as I predict, they read the Canon to prohibit its use for Bishop Duncan's deposition, the only persons who need find that out are Bishop Schori, Bishop Chang (or Price), and the replacement members of the Title IV Review Committee. The charges against Bishop Duncan would not be laid before the House in September, and the future of the Episcopal Church, while by no means rosy under its current leadership, would at least not be as grim as it looks now.